Yazoo & Mississippi Valley Railroad v. Shelby

Mississippi Supreme Court

Yazoo & Mississippi Valley Railroad v. Shelby

48 So. 403, 95 Miss. 155

Mississippi Supreme Court·Decided March 15, 1909·Published

Opinion

Whitfield, O. J.,

delivered the opinion of the court.

The learned counsel for the appellant have presented in their very able brief its cause as skillfully as it is possible for it to [164]*164have been presented. They do not, however, give full force to the testimony of the plaintiff, and of the negro Tandy Gibbons. According to the testimony of the plaintiff, the conductor said to him: “I don’t give a damn what you want to go for. Get off of there” — before the plaintiff concluded to get down, and made his counter observation, which he calls “a passing shot,” at the conductor. The negro Tandy Gibbons testified that the conductor said to the plaintiff, in response to his request, “No-, get down, God damn you,” before Shelby made his response. It is perfectly obvious that the- jury accepted the testimony of these two witnesses and repudiated the testimony for the defense. According to this testimony of the plaintiff and the witness Gibbons that the insulting conduct of the conductor occurred before the plaintiff had decided to- get down off the side of the car, it is evident that this conduct took place plainly whilst the conductor was engaged in and about the “master’s business.” The whole controversy turás upon that point, whether or not the conductor’s insulting language and conduct, as testified to by the plaintiff and the witness Gibbons, took place whilst the conductor was engaged in and about the “master’s business,” and on this point the learned counsel for the appellant drew and secured from the court a series of instructions presenting their contention in every possible view, in the aptest and strongest language. These instructions for the defendant are Nos. 5, 6, 8, 9, 10, 13, and 14. We cannot conceive how the law of the case for the defendant could have been any more learnedly or accurately presented. The trouble with the case is that the jury accepted the testimony for the- plaintiff, and we cannot say that the verdict is manifestly wrong.

' Therefore the judgment is affirmed.

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Whitfield, O. J.,

delivered the opinion of the court.

The learned counsel for the appellant have presented in their very able brief its cause as skillfully as it is possible for it to [164]*164have been presented. They do not, however, give full force to the testimony of the plaintiff, and of the negro Tandy Gibbons. According to the testimony of the plaintiff, the conductor said to him: “I don’t give a damn what you want to go for. Get off of there” — before the plaintiff concluded to get down, and made his counter observation, which he calls “a passing shot,” at the conductor. The negro Tandy Gibbons testified that the conductor said to the plaintiff, in response to his request, “No-, get down, God damn you,” before Shelby made his response. It is perfectly obvious that the- jury accepted the testimony of these two witnesses and repudiated the testimony for the defense. According to this testimony of the plaintiff and the witness Gibbons that the insulting conduct of the conductor occurred before the plaintiff had decided to- get down off the side of the car, it is evident that this conduct took place plainly whilst the conductor was engaged in and about the “master’s business.” The whole controversy turás upon that point, whether or not the conductor’s insulting language and conduct, as testified to by the plaintiff and the witness Gibbons, took place whilst the conductor was engaged in and about the “master’s business,” and on this point the learned counsel for the appellant drew and secured from the court a series of instructions presenting their contention in every possible view, in the aptest and strongest language. These instructions for the defendant are Nos. 5, 6, 8, 9, 10, 13, and 14. We cannot conceive how the law of the case for the defendant could have been any more learnedly or accurately presented. The trouble with the case is that the jury accepted the testimony for the- plaintiff, and we cannot say that the verdict is manifestly wrong.

' Therefore the judgment is affirmed.

Yazoo & Mississippi Valley Railroad v. Shelby, 48 So. 403, 95 Miss. 155 (Mich. 1909).

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